Advisory opinion issued to Citizens Union by State Board of Elections.
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Transcript of Advisory opinion issued to Citizens Union by State Board of Elections.
7/27/2019 Advisory opinion issued to Citizens Union by State Board of Elections.
http://slidepdf.com/reader/full/advisory-opinion-issued-to-citizens-union-by-state-board-of-elections 1/4
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NEW YORK STATE
BOARD OF ELECTIONS
2013 OPINION #1
DATE: July 29, 2013
QUESTIONS PRESENTED
A 501(c)4 organization has requested that the New York State Board of Elections (“State
Board”) review certain activities of the organization and then issue a Formal Opinion
addressing:
1. Does the organization's engaging in any one, or any combination of, the delineated
activities require it to register as a political committee?
2. Must the organization report the expenditures it has incurred in connection with any
of the delineated activities? If so, how should those expenditures be calculated?
It is the Opinion of the State Board, as further detailed below, that the organization would be
deemed a political committee, and as such, would be required to register as a political
committee and file requisite campaign financial disclosure reports detailing receipts and
expenditures relative to its activity as a political committee, pursuant to Article 14 of the New
York State Election Law.
DISCUSSION
The organization states that “(we are) a nonpartisan 501(c)(4) good government organizationbased in New York City that works to promote honest, efficient, and accountable government in
New York City and New York State. We seek reforms to the manner in which government
performs, elections operate, voters participate, and our political system functions. Although
much of our work is focused on public education, issue research, policy advocacy, and direct
lobbying, we also evaluate and candidates for city and state office.”
With respect to the evaluation of candidates, the organization states that said candidate
evaluation “involves inviting candidates to return a completed questionnaire on a wide variety
of issues and to meet with a small committee of (the organization) members for an interview.
The board of directors ultimately decides which of the candidates recommended by our localcandidates committee to support for election. Our expression of support is simply a declaration
of our belief that a particular candidate is qualified, deserves our backing and would make an
effective elected official. We do not go further and engage with either the candidate or his or
her campaign once our decision is made known. Consequently, we do not participate in
campaigns or electioneering with the candidate. On their own, candidates however are free to
use our recommendation in their communications to voters.” The organization further states
that “(i)t is our practice to use the term “prefer” to indicate the candidates we support in a
7/27/2019 Advisory opinion issued to Citizens Union by State Board of Elections.
http://slidepdf.com/reader/full/advisory-opinion-issued-to-citizens-union-by-state-board-of-elections 2/4
7/27/2019 Advisory opinion issued to Citizens Union by State Board of Elections.
http://slidepdf.com/reader/full/advisory-opinion-issued-to-citizens-union-by-state-board-of-elections 3/4
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provided, however, that a person or corporation making a contribution or contributions to a
candidate or a political committee which has filed pursuant to section 14 –118 shall not, by that
fact alone, be deemed to be a political committee as herein defined.”
The Election Law goes on to require that the any political committee which, in connection with
any election, receives or expends any money or other valuable thing or incurs any liability topay money or its equivalent shall file statements sworn to by the treasurer of such committee.
EL 14-102(1).
The first part of the analysis is to determine whether the activities of the organization cause it
to fall within the definition of “political committee?” If so, then it would be required to register
as a political committee and disclose its receipts and expenditures as such via the filing of
campaign financial disclosure statements.
In applying the definition of political committee, the standard to apply to the activity in
question is whether it expressly advocates for the election or defeat of the candidate. “Express
Advocacy” has been defined by the State Board as “a standard created by the United States
Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), (which) means a communication that
contains express words such as vote, oppose, support, elect, defeat, or reject, which call for the
election or defeat of a candidate.” (9 NYCRR 6200.10(b)(2)).
Based upon the description of activities delineated above and provided by it, the organization
appears to be expressly advocating the success of a select list of candidates to both its own
members and to the public in general. Words such as “Prefer” or “Endorse” are express words
within the definition of Express Advocacy stated above. Such Express Advocacy by this
organization, and the activities to which it specifically relates, would cause the organization to
be deemed a political committee within the definition of the Election Law.
The second part of the analysis is to determine what expenditures to report. Generally
speaking, activities by a political committee that are “Express Advocacy” and coordinated,
would be deemed “in-kind” contributions subject to the candidate’s contribution limit, and
would have to be reported as expenditures by the political committee making them, and
reported as “in-kind” contributions received by the candidate. Activities that are “Express
Advocacy” and that are “Independent Expenditures”, are not deemed “in-kind” contributions.
They would only have to be reported by the political committee making the expenditures. The
State Board has issued an analogous Formal Opinion 1978 #16.
The analysis of what constitutes coordination is highly fact-specific and needs to be undertaken
on a case by case basis. “Independent Expenditures” have been defined by the State Board to
mean “an expenditure made in support or opposition of a candidate: (i) that expressly
advocates for the election or defeat of a candidate; and (ii) that the candidate or his/her agents
or authorized political committee(s) did not authorize, request, suggest, foster or cooperate
with in any way.” (9 NYCRR 6200.10(b)(1)).
7/27/2019 Advisory opinion issued to Citizens Union by State Board of Elections.
http://slidepdf.com/reader/full/advisory-opinion-issued-to-citizens-union-by-state-board-of-elections 4/4
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In order to make such a determination, the Board has reviewed the process and activities of the
organization outlined in its correspondence dated April 3, 2013, with respect to the evaluation
of candidates, which stated that said candidate evaluation “involves inviting candidates to
return a completed questionnaire on a wide variety of issues and to meet with a small
committee of members for an interview. The board of directors ultimately decides which of the
candidates recommended by our local candidates committee to support for election. Ourexpression of support is simply a declaration of our belief that a particular candidate is
qualified, deserves our backing and would make an effective elected official. We do not go
further and engage with either the candidate or his or her campaign once our decision is made
known. Consequently, we do not participate in campaigns or electioneering with the candidate.
On their own, candidates however are free to use our recommendation in their
communications to voters.” The organization further states that “(i)t is our practice to use the
term “prefer” to indicate the candidates we support in a primary election because it is not the
final election where all voters have the final say. We use the term “endorse” for candidates we
support in a general election since it is the determinative election. We participate in this
process to inform our members and believe our communications are primarily intended for our
membership.”
While this information is informative, it is not necessarily dispositive on the issue of
independence. For instance, in outlining its process for candidate evaluation, the organization
states that: “We do not go further and engage with either the candidate or his or her campaign
once our decision is made known. Consequently, we do not participate in campaigns or
electioneering with the candidate.” (emphasis added). This presumes that such activity on the
part of the organization prior to its announcement of “prefer” or “endorse” of a particular
candidate is not participation, or that its activities after such announcement are not
coordinated with any candidate. It is also unclear what role the candidates or their campaigns
have relative to the content, including editing, of the “Voter Directory” , or any related newsrelease, or Web Page materials relative to said candidates.
There is no description of the cost for any of these activities which are designed to promote a
candidate. The State Board is of the opinion that only those specific expenditures made by this
organization in connection with any election relative to its activity as a political committee are
required to be reported. Statements reporting expenditures that are a portion of a larger
expenditure (e.g. a web page that has political related material as well as non political related
material) shall disclose such reportable expenditures on a pro rata basis.
STATE BOARD OF ELECTIONS